One common law, one standard: Significant damages award in historic Queensland abuse case

In issue

The case involved consideration of the following issues:

• what law is to be applied, in circumstances where the alleged abuse took place in Queensland but court proceedings had been instituted in NSW
• whether the alleged physical abuse constituted 'serious physical abuse'
• the relevant standard of proof
• whether the plaintiff consented to an incident of alleged sexual abuse, and
• the assessment of damages.

The background

The plaintiff bought a claim in the Supreme Court of New South Wales against her father, the defendant, seeking damages for his alleged sexual and physical abuse occurring in Queensland. The plaintiff alleged that the defendant physically abused her throughout her childhood and that he sexually abused her on multiple occasions over a two-week period in October 1988 when she was 17 years old. The plaintiff claimed that she sustained serious psychiatric harm as a result of the abuse which resulted in an inability to work.

The defendant denied each of the plaintiff’s allegations of sexual activity, except for one occasion where he alleged that this occurred at the plaintiff’s request (i.e. the plaintiff consented to the act). He also denied the plaintiff’s physical abuse allegations, save for an admission that he smacked the plaintiff on the bottom, and on occasion with a wooden spoon.

Critically, the defendant was convicted in 2004 of six sexual abuse charges against the plaintiff.

The decision at trial

The applicable law

The Court held that the lex loci delicti jurisprudence applied, meaning that the law of Queensland – being where the tort was committed – governed all questions of substance, while the law of NSW governed all questions of procedure, including the rules of evidence.

Whether the physical abuse constituted 'serious physical abuse'

The plaintiff alleged that the various instances of physical abuse, ranging from having her hair pulled aggressively to being belted with a leather belt, resulting in welts which often bled.

The Court applied the recent decision of Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2025] NSWSC 128 and focused on the severity of the injurious potential in respect of the alleged physical abuse.

Accordingly, the Court ruled that incidents where the plaintiff was left bleeding or suffered black eyes constituted 'serious physical abuse', whereas other incidents of hair pulling or being hit with a wooden spoon did not meet this high threshold.

The relevant standard of proof

As the laws of NSW applied to all questions of procedure, the Evidence Act 1995 (NSW) applied to the proceeding. The relevant standard of proof is set out within s 140 of that Act, which stipulates that, in civil proceedings, the Court must be satisfied that the case has been proved on the balance of probabilities, taking into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. This statutory test has been held to reflect the doctrine in Briginshaw v Briginshaw (1938) 60 CLR 336.

In that regard, in proof of the plaintiff’s abuse allegations, the plaintiff relied upon the 2004 certificate of conviction, which was admissible as prima facie proof of the defendant sexually abusing the plaintiff. Further, the plaintiff provided compelling evidence as to her alleged abuse, which was consistent with her reporting history.

In light of this evidence, the Court ruled that the plaintiff’s evidence was admissible and compelling, resulting in a finding that the plaintiff had successfully discharged her burden of proof.

The consent issue

In short, the defendant alleged that the plaintiff has consented to an incident of sexual conduct, whereas the plaintiff contended that she did not consent. However, as the Court 'emphatically' accepted the plaintiff’s evidence over the defendant’s, the Court ruled that there was no consent provided by the plaintiff.

Compensation

The plaintiff was awarded $1,495,395.00. This was inclusive of general damages, aggravated damages, interest, past economic loss, future economic loss, past out-of-pocket expenses and future out-of-pocket expenses.

Notably, the Court emphasised that 'there is but one common law of Australia': Lange v Australian Broadcasting Corporation (1977) 189 CLR 520 at 536. This was not an insignificant finding, as it resulted in the Court awarding general damages in the sum of $300,000 – a sum significantly higher than that which Queensland Courts have previously awarded for historical abuse matters.

Implications for you

Firstly, the decision underscores the lex loci delicti principle, being that the law of the place where the tort occurred governs all substantive issues. However, the jurisdiction in which the proceeding is being prosecuted governs all issues of procedure.

Secondly, the decision highlights that acts of alleged physical abuse must involved injurious misconduct of an intense or sustained nature to meet the threshold of 'serious physical abuse'. Physical acts which lack severity or a prolonged pattern of abuse are unlikely to meet this high water mark.

Thirdly, and perhaps most critically, the decision reinforces that there is but one common law of Australia, with general damages being awarded in the sum of $300,000. From a practical perspective, this suggests that Queensland Courts might place reliance on interstate decisions when determining appropriate awards for general damages in institutional abuse matters, particularly given that Queensland’s historical awards in institutional abuse matters have, to date, been significantly lower than its interstate counterparts.